APHC010209162022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY,THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 259/2022 Between: 1. POTHINEEDI VARA LAKSHMI, (WIFE OF DECEASED) W/O LATE RAMA SUBBA RAO @ RAMA SUBBULU/ RAMA SUBBAIAH HOUSE WIFE, AGED ABOUT 40 YEARS 2. POTHINEEDI SAIDA RAO, (SON OF DECEASED) S/O LATE RAMA SUBBA RAO @ RAMA SUBBULU/ RAMA SUBBAIAH AGED ABOUT 20 YEARS, PHYSICALLY CHANGED PERSON 3. POTHINEEDI VENKATA PADMA, (DAUGHTER OF DECEASED) D/O LATE RAMA SUBBA RAO @ RAMA SUBBULU/ RAMA SUBBAIAH AGED ABOUT 18 YEARS, STUDENT 4. POTHINEEDI SREELATHA, (SON OF DECEASED) D/O LATE RAMA SUBBA RAO @ RAMA SUBBULU/ RAMA SUBBAIAH AGED ABOUT 16 YEARS, STUDENT 5. POTHINEEDI SEETHA RAVAMMA, (MOTHER OF DECEASED) W/O LATE SYDULU, HOUSE WIFE, AGED ABOUT 70 YEARS, (APPELLANT NO.4 BEING MINOR REPRESENTED BY HER MOTHER AND GUARDIAN APPELLANT NO.1) ALL ARE R/O NALLAPADU VILLAGE , GUNTUR RURAL MANDAL GUNTUR DISTRICT ...APPELLANT(S) AND 1. K NAGA RAJU, S/O SAMBASIVA RAO AGED MAJOR, OWNER OF SCORPIO BEARING NO. AP 299279 R/O DOOR O. 9-391, GANDHI 2 VS,J M.A.C.M.A.No.259 of 2022 NAGAR, PIDUGURALLA TOWN GUNTUR DISTRICT 2. HDFC ERGO GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS REGIONAL MANAGER 3 RD FLOOR, 3-6- 180/2 KUCHAKULLA HOUSE, HIMAYATH NAGAR, HYDERABAD TELANGANA STATE - 500029 3. T SRAVAN KUMAR, S/O KRISHNA MURTHY AGED MAJOR, DRIVER OF SCORPIO BEARING NO. AP 299279 R/O NEMILLI REDDY BAZAR, PIDUGURALLA TOWN, GUNTUR DISTRICT ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying that the High court may be pleased to set-a-side the Judgment and Decree Dt. 28-08-2019 on the file of CHAIRMAN Motor Accidents Claims Tribunal CUM V ADDL. DISTRICT JUDGE FAC II ADDL. DISTRICT JUDGE GUNTUR , in M.V.O.P. No. 69 of 2016 by allowing the MACMA, and to pass IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 873 days in preferring the MACMA against Judgment and Decree Dt. 28-08-2019 on the file of CHAIRMAN Motor Accidents Claims Tribunal CUM V ADDL. DISTRICT JUDGE FAC II ADDL. DISTRICT JUDGE GUNTUR, and to pass s Counsel for the Appellant(S): 1. B PARAMESEWARA RAO Counsel for the Respondent(S): 1. GUDI SRINIVASU 2. The Court made the following: 3 VS,J M.A.C.M.A.No.259 of 2022 JUDGMENT: The present appeal has been preferred by the claimants aggrieved by the award and decree dated 28.08.2019 passed by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge FAC II Additional District Judge, Guntur, in M.V.O.P.No.69 of 2016 whereby and whereunder the Tribunal granted compensation of Rs.8,50,375/- (Rupees Eight lakhs fifty thousand three hundred and seventy five only) to the petitioners/respondent Nos.1 to 5 herein, as against the claim of Rs.15,00,000/-, on account of the death of the deceased Pothineedi Rama Subba Rao @ Rama Subbulu/Rama Subbaiah in a motor accident that occurred on 26.05.2010. 02. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 03. The claimants filed the claim petition before the Tribunal under Sections 140 and 166 of Motor Vehicles Act, 1988 and Rules 455 and 475 of A.P.M.V. Rules, the case of the petitioners, in brief, is as follows: On 26.05.2010, at about 2.00am while the deceased and his family members and others were travelling in a Scorpio bearing No.AP29 9279 from Khanipakam Temple to go to Mahanandi Temple and when they reached near Kalikirivandlapalle on Kadapa-Chittoor road, NH-18, K.V.Palli, the driver of the Scorpio who is the 3rd respondent herein, drove the same in a rash and negligent manner without following the traffic rules and regulations 4 VS,J M.A.C.M.A.No.259 of 2022 and without taking any precautionary measures, hit the on coming lorry from behind, as a result of which, the deceased, petitioners and others sustained multiple injuries all over the body and the deceased died on the spot. The matter was reported to K.V.Palli Police Station and accordingly case was registered in Crime No.41 of 2010 under sections 337, 304-A of IPC. The petitioners, who are the wife, children and mother of the deceased, filed the claim petition seeking compensation of Rs.15,00,000/- for the death of the deceased, against the owner, insurer and driver of the crime vehicle. 04. Before the Tribunal, the 1st respondent, who is the owner of the said Scorpio, did not file any written statement. Whereas the respondent Nos.2 and 3 filed their written statements separately by denying the allegations of the petitioner and contending that there is no fault and negligence on the part of the 3rd respondent/driver and that the above accident was occurred due to the fault of the deceased and it was also contended that the 3rd respondent was not having valid driving license as on the date of the accident and hence the 2nd respondent is not liable to pay any compensation. The amount claimed by the claimants, is highly excessive and hence, it was prayed to dismiss the claim petition. 05. Basing on the pleadings, the Tribunal framed the following issues for trial: 5 VS,J M.A.C.M.A.No.259 of 2022 “1. Whether the accident occurred due to the rash and negligent driving of the driver of the Scorpio bearing No.AP 29 9279? 2. Whether the petitioners are entitled for compensation amount of Rs.15,00,000/-, from which of the respondent? 3. To what relief?” 06. On behalf of the petitioners/claimants, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked. On behalf of the respondents, R.W.1 was examined and Ex.B1 policy was marked. 07. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal allowed in part the claim petition against respondent Nos.1 and 3, awarding compensation of Rs.8,50,375/- with interest @7.5% per annum from the date of petition, till the date of deposit within 30 days from today(date of award) and directed respondent Nos.1 and 3 to deposit the entire compensation amount along with proportionate costs and interest. The compensation awarded was proportioned between the petitioners and they were given liberty to withdraw certain amount each and the balance amount was directed to be kept in fixed deposit in any Nationalized Bank for respective periods each. 09. Aggrieved by the said award, the appellants/Claimants preferred this appeal seeking enhancement of compensation amount considering the number of dependants and also contending to fix liability on the 2nd respondent/Insurer also. 6 VS,J M.A.C.M.A.No.259 of 2022 10. On the other hand, learned counsel for the respondent Nos.1 to 3 herein has supported the impugned award and prayed to dismiss the appeal. 11. Though notice was served on the 1st respondent/owner of the offending vehicle, there is no representation on his behalf. Learned counsel for the Respondent No.2 submits that due to the negligence of the deceased itself, the accident occurred. The deceased was not having valid driving license to drive the motorcycle. There is no proper proof showing the income of the deceased. Hence, prays to dismiss the appeal. 12. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 13. As seen from the material on record, the Tribunal, considering the evidence of Ex.A1 and A2 and the testimony of PW1, who is the eye witness at the time of accident, categorically held that the accident was occurred due to rash and negligent driving of the driver of the crime vehicle and the said finding became final and needs no interference in the absence of specific challenge thereto. 14. The appellants/claimants got examined PWs 2 and 3 to the extent that the deceased was working in Khaleel Restaurant, Piduguralla and earning Rs.10,000/- per month and also filed Ex.A6 letter head showing pay particulars and also filed Ex.A5 Milk Supply cards to Heritage Milk Collection centre to prove that the deceased was supplying milk in Heritage Milk 7 VS,J M.A.C.M.A.No.259 of 2022 Collection centre in his village and was earning certain amounts and he was also cultivating 6-00Acres of his personal land and he was earning Rs.20,000/- per month. In spite of the said evidence of PWs 2 and 3, the Court below came to a conclusion that the deceased have not adduced any documentary evidence in support of their case and fixed the income of the deceased as Rs.4,500/- as daily wage earner. 15. As rightly pointed out by the learned counsel for the appellants that the claimants in support of the claim that the deceased was working in Khaleel Restaurant, got examined PW3, who is the Proprietor of the said Restaurant and also filed Ex.A6 letter head showing pay particulars issued by PW3 to that extent. To prove that the deceased was supplying milk to Heritage Milk Collection centre in his village, the appellants got examined PW2 who supported the earnings of the deceased on milk business and also filed Ex.A5 Milk Supply cards to Heritage Milk Collection centre, but the Court below failed to consider the said aspects and wrongly assumed that the claimants have failed to adduce any documentary evidence in support of their case. 16. In view of the same, this Court is of the opinion that though the claimants were able to establish their case through both ocular and documentary evidence, the Tribunal assessed the income as that of a daily wager earning Rs. 4,500/- per month, as the accident took place in the year 2010. This Court finds it appropriate and reasonable to reassess the income of the deceased at Rs. 10,000/- per month instead of Rs. 4,500/- per month. 8 VS,J M.A.C.M.A.No.259 of 2022 17. By taking the income of the deceased as Rs.10,000/- per month, 25% is added towards loss of future prospects, his income would amount to Rs.12,500/-(Rs.10,000/- + 25%). Upon deducting 1/4th towards his personal expenses it would come to Rs.9,375/-(Rs.12,500/- x 1/4th). Now his annual income would come to Rs.1,12,500/- (Rs.9,375/- x 12). and applying the relevant multiplier of ‘15’ applicable to the age of the deceased i.e., 40 years, as per the guidelines laid down in Sarla Verma v. Delhi Transport Corporation 1, would arrive at Rs.16,87,500/- (Rs.1,12,500/- x 15). The Tribunal awarded a sum of Rs. 52,000/- (Rs. 40,000/- + 30%) under the head of loss of consortium by applying an enhancement of 10% every three years, taking into account a lapse of nine years from the date of the accident to the date of the award passed by the Court below. However, the said amount was granted only to the 1st appellant/claimant and not to the 2nd, 3rd and 4th appellants/claimants, who are the minor children of the deceased as on the date of the award, nor to the 5th appellant/claimant, who is the mother of the deceased. In view of the same, appellants 2 to 5 are also entitled to be awarded Rs. 52,000/- each under the head of loss of consortium, on similar lines as granted by the Tribunal, which would aggregate to Rs. 2,08,000/- (Rs. 52,000/- x 4). Therefore, the appellants/claimants are entitled to a total compensation of Rs.18,95,500/-(Rs.16,87,500/- + Rs.2,08,000/-) along with interest @ 7.5% per annum from the date of petition till realization. 1 2009 ACJ 1298 9 VS,J M.A.C.M.A.No.259 of 2022 18. Though the appeal has been preferred on the ground that the respondent No.2 was not jointly and severally made liable for payment of the compensation. But however as the respondent No.3 was not having valid driving license at the time of accident and respondent No.1 was using the vehicle on hire basis and having violated the terms and conditions of the policy. 19. Under similar circumstances, the Hon’ble Supreme Court in “National Insurance Co. Ltd. V. Swaran Singh & Ors.2” Has categorically held that the insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party on behalf of the assured. Therefore, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. 20. In “National Insurance Co. Ltd. V. Swaran Singh & Ors.,” (referred above) the Hon’ble Supreme Court while dealing with the case of unauthorized passengers held as follows: “Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party 2 (2004) 3 SCC 297 10 VS,J M.A.C.M.A.No.259 of 2022 on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with Sub- section (1) thereof. The right to avoid liability in terms of Sub- section (2) of Section 149 is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.” 21. As per the law laid down by the Hon’ble Supreme Court in the Judgment (referred supra) even if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimant and then recover the amount from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer’s liability towards third-party victims does not vanish immediately. 22. In the case on hand, the evidence adduced by the claimants before the Tribunal would substantially prove that the accident occurred due to the rash and negligent driving of respondent No.3 – driver of the auto bearing No. AP 11 VS,J M.A.C.M.A.No.259 of 2022 29 9279, wherein the deceased was travelling. In view of the same and in the light of the decision of the Hon’ble Supreme Court referred to supra, the contention of respondent No.2 – insurance company that it cannot be directed to pay the compensation cannot be accepted. In view of the same, this Court is of the considered opinion that the respondent No.2 is also jointly and severally liable to pay compensation to the claimants. 23. In view of the above discussion, this appeal is allowed by modifying the award passed by the Tribunal only to the extent of directing respondent No.2 – insurance company to initially pay the compensation to the appellants – claimants and then recover the amount from the owner of the vehicle and also enhance the compensation amount from Rs.8,50,375/- to Rs.18,95,500/- after deducting the amounts, if any, already deposited, within eight (08) weeks from the date of receipt of a copy of this order. Failing which, appellants/claimants are at liberty to initiate appropriate steps for recovering the same. On such deposit being made, the appellants/claimants are permitted to withdraw the amount, in proportionate shares, as provided under the impugned order. The 4th petitioner is permitted to withdraw the amount after attaining majority. No costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed. __________________ JUSTICE V.SUJATHA Date: 27.01.2026 PBS